PERM Perspectives under Trump

The polices of the Trump Administration are not only to protect American workers but also to enable qualified foreign workers to contribute to the economic development of the United States. The job of gatekeeper falls on the shoulders of the Department of Labor, Office of Foreign Labor Certification, in Washington, DC, and its processing centers in Atlanta, Georgia, and Chicago, Illinois. The labor certification process is designed to determine when and where employment based immigrant visas should be granted.

Permanent Electronic Record Management(PERM) was begun in 2005 to enable rapid electronic review of applications filed by employers. Previously, long processing backlogs often took five years or more. The PERM process, based on electronic review of attestations and requiring employers to swear under penalty of perjury to the truth of the information presented in the applications, promised to speed things up.

Prior to filing PERM applications, employers must first recruit for US workers, interview them when appropriate, and prepare reports to document whether there were any able, willing, qualified and available US workers.

Employers prepare applications electronically with DOL on form 9089. The forms are reviewed by computers that indicate which applications should be immediately certified and which applications, because of non-standard responses or specific areas of concern, need to be reviewed by DOL analysts who assist the Certifying Officer.

It follows that the key to a timely, successful PERM application is to provide suitable answers to the questions on the form. If it appears that an audit is needed, the employer must submit the entire record file to the Certifying Officer, including a full report documenting all the recruitment steps taken and results of interviews.

In accordance with the zero-tolerance policy used for electronic review, applications are frequently denied due to simple typographical errors which may seem harmless but will not be excused. The rationale for this is that the PERM process speeds up approvals by operating with great efficiency, even at the expense of denying cases with immaterial errors. DOL’s insistence on this is underscored by a 2008 amendment to the rule which makes it impossible for any PERM applications to be modified, corrected or altered after initial filing.

PERM applications may also be denied if DOL believes that the job description, duties, minimum requirements, licenses, languages and special skills are not normal in the US. All standards must be accordance with DOL guidance published in the O*Net and the Occupational Outlook Handbook.

The recruitment steps set forth in The PERM Book demonstrate that the DOL does not follow a single paradigm. Subtle but fatal discrepancies in wording often occur due to different kinds of media engaged in diverse forms of recruitment such as newspaper ads, internal notices within the employer’s organization, job listings in state workforce agencies, employer web sites, job search web site other than the employer's, on-campus recruiting, trade or professional organizations, trivate employment firms, employee referral program with incentives, campus placement offices, local and ethnic newspapers, and radio and television advertisements

Because employers describe job opportunities differently depending on the type of recruitment, similarity of language is not always possible. If information on the PERM form and recruitment are not a close match, denials may be the unwelcome result.

The Department of Labor is empowered by the US Supreme Court to provide instructions and guidance as part of its function as an administrative agency, because interpretation of the laws is a necessary function. Attorney Michael Piston prepared an analysis of these powers called, “What is the Law” for the PERM Book III.

Mr. Piston explains how any of the following criteria, even informal ones, may be used by the DOL to evaluate PERM cases for conformance to the statute:

a. The Immigration and Nationality Act (INA),
b. Department of Labor (DOL) Regulations
c. Instructions to Form Eta 9089
d. Decisions Published by the Federal Court of Appeals
e. En Banc and Panel Decisions of the Board of Alien Labor Certification Appeals
f. Decisions of the DOL Administrative Review Board (ARB)
g. A Plethora of “administrative guidance”
h. Agency comments published in the Federal Register,
i. DOL Answers to Frequently Answered Questions (FAQs),
j. Minutes from Stakeholder Meetings
k. Agency Memoranda
l. Letters from DOL to Attorneys or Members of the Public
m. DOL Speeches and Answers to Questions at AILA or Other Conferences

Despite all the complexities, the Department of Labor follows its mandate and approves bona fide cases which are carefully prepared and meet the requirements of the law intended to protect U.S. workers.